Wednesday, December 21, 2011

General Allegation Of Fraud Is Not Sufficient To Set Aside Judgment

In Vilvar v. Deutsche Bank Trust Company Americas (4D11-457), the Fourth District affirmed the trial court's order refusing to vacate a judgment. In this case, soon after a final judgment was obtained the defendant filed bankruptcy. After the bankruptcy action was dismissed, the plaintiff moved to amend its judgment to include additional amounts owed and relied upon the affidavit of Cross in obtaining the amended judgment. "One day before the foreclosure sale was to have occurred, Vilvar filed a second petition in bankruptcy, which was also later dismissed. The sale was re-scheduled, but one week before the sale, Vilvar filed a motion to vacate the amended final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In her motion, Vilvar alleged that Cross’s affidavit “was inaccurate and constituted hearsay” and it “failed to include sworn or certified copies of the very business records upon which” Cross relied. The motion was denied and this appeal followed." The court stated:
What occurred in Freemon is precisely what transpired in this case. Cross’s affidavit stated that she was the assistant vice president of Saxon, which, as the loan servicer, was responsible for collection of the loan and pursuit of any delinquency in payments. Cross went on to explain that she was familiar with Saxon’s books, records, and documents relevant to the allegations in the complaint, and that all of the books, records, and documents concerning the loan were kept by Saxon in the regular course of its business. Cross’s affidavit also stated that she had personal knowledge of the facts regarding the sums due and owing to the bank, and provided a complete breakdown of those sums.
In stark contrast, Vilvar’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside the amended final judgment. She does not dispute that she defaulted on her mortgage, and does not allege that the amounts set forth in Cross’s affidavit or that were due and owing are incorrect. Indeed, Vilvar has not specifically alleged any fraud in connection with Cross’s statements in her affidavit regarding the amounts due. Equally as compelling is the fact that Vilvar failed to object to or appeal the final judgment and the amended final judgment. Vilvar waited over a year from the entry of the amended final judgment to take issue with Cross’s affidavit.
Citing to Freemon, Hembd v. Dauria, Flemenbaum v. Flemenbaum, Cady v. Chevy Chase Sav. & Loan, Inc., and Rule 1.120(b), the court stated: "This Court has made it abundantly clear that general allegations of fraud will not support a motion to vacate a final judgment under rule 1.540(b)(3)." 
We likewise find no merit to Vilvar’s claim that Cross’s affidavit did not constitute admissible evidence and that failure to attach any sworn or certified copies of the records upon which she relied should have made the affidavit insufficient under rule 1.510(e). Vilvar’s failure to timely object to the sufficiency of Cross’s affidavit when it was presented on motion for summary judgment is fatal to this claim.

Monday, December 19, 2011

Mandatory Mediation Program In Foreclosure Cases Ended

The Florida Supreme Court entered THIS order today and ended the mandatory mediation program in foreclosure cases. The court stated:
The program was established as a means for the court system to address the overwhelming number of mortgage foreclosure cases coming into the system. The Court has reviewed the reports on the program and determined it cannot justify continuation of the program. Accordingly, upon issuance of this administrative order, the statewide managed mediation program is terminated.
The court also noted that:
Circuit chief judges are vested under article V, section 2(d), Florida Constitution, with responsibility for the administrative supervision of their circuits. Section 43.26, Florida Statutes, authorizes circuit chief judges “to do everything necessary to promote the prompt and efficient administration of justice.” These authorities empower the circuit chief judges to adopt or employ any measures permitted by statute or court rule to manage pending and new residential mortgage foreclosure cases, including referral of cases to mediation on a case-by-case basis pursuant to section 44.102, Florida Statues, and Florida Rule of Civil Procedure 1.700(a).

Thursday, December 15, 2011

In re: Certification of Need for Additional Judges

In In re: Certification of Need for Additional Judges (No. SC11-2246), the Florida Supreme Court issued an opinion and certified the need for 23 new circuit court judges, 48 new county court judges, and one new judge in the Second District Court of Appeal. Attached to the opinion was the chart below which breaks down the trial court judge needs by county:

Wednesday, December 14, 2011

"Florida Law Update," A New Blog By Judge Ramirez

Third District Judge Juan Ramirez, Jr. started a new blog, "Florida Law Update." 
"The blog covers appellate cases as they are released from the Third District and other appellate courts in the state. It is intended merely as a mechanism for alerting busy lawyers to what Judge Ramirez considers significant or interesting cases, with a link so that you can read the entire opinion. Judge Ramirez will just report the cases in a neutral, nonjudgmental manner, particularly the Third District’s own opinions." 
The emphasis is mine. You can view the blog by clicking on the title above (in this post), or in the "Florida Legal Websites and Blogs" list located on the right of this page. On that note, there are a number of blogs and sites that may be of interest in the various lists on the right of this page or on the "Links" page of this blog.

Tuesday, December 13, 2011

Fourth District Allows For Filing Of Stipulation For Extension Of Time (As Opposed To Motions)

Effective February 1, 2012, the Fourth District will allow the parties to stipulate that they have agreed to an extension of time to file briefs. The court's administrative order is below:
Admin. Order No. 2011-2 (In re: Agreed Extensions of Time for Briefs)

Thursday, December 8, 2011

Fourth District Reverses Order Finding Non-Party Witness Waived Service Requirements

In Garfinkel v. Katzman (4D11-1354), the Fourth District reversed the trial court's order and agreed with a challenge by a non-party witness to "an order of the trial court finding she waived her objection to the court’s exercise of jurisdiction over her person by filing a motion for protective order that sought to quash the deposition subpoena for lack of service and to limit any deposition permitted on the grounds of the spousal and litigation privileges." The court held that:
A court lacks jurisdiction over a non-party and the authority to require the non-party to appear for deposition where she has not been served with the deposition subpoena....The filing of the motion for protective order, seeking to quash or limit the deposition, was defensive and not a claim for affirmative relief that resulted in a waiver of the claim of lack of service and personal jurisdiction.

Two Recent State Supreme Court Opinions In Foreclosure Cases

As discussed HERE, the Florida Supreme Court declined to accept a settlement stipulation today and will answer the question certified by the Fourth District in a foreclosure lawsuit. Therefore, I thought it was worth posting two state supreme court opinions relating to foreclosure that were sent to me in the past days/weeks. 

Previously, HERE, I noted the Maine Supreme Judicial Court's opinion in JPMorgan Chase Bank v. Harp  (Jan. 6, 2011), and the Massachusetts Supreme Judicial Court's decision in U.S. Bank National Association v. Ibanzez (Jan. 7, 2011). Two other state supreme courts were released in the last couple of weeks. The Arizona Supreme Court released THIS opinion in Vasquez v. Saxon Mortgage, Inc., and answered a certified question from the United States Bankruptcy Court.  Additionally, the Maine Supreme Judicial Court released THIS opinion in Federal National Mortgage Association v. Bradbury

In Bradbury, the Maine Supreme Judicial Court stated that "Bradbury challenges the court’s failure to find loan servicer GMAC Mortgage, LLC in contempt pursuant to M.R. Civ. P. 56(g) after sanctioning Fannie Mae for submitting a bad faith affidavit for purposes of summary judgment. She also contends that the court erred in failing to award her attorney fees and costs associated with opposing Fannie Mae’s motion for a protective order."

The court stated that "The affidavit in this case is a disturbing example of a reprehensible practice. That such fraudulent evidentiary filings are being submitted to courts is both violative of the rules of court and ethically indefensible. The conduct through which this affidavit was created and submitted displays a serious and alarming lack of respect for the nation’s judiciaries."

Notwithstanding that criticism, the court affirmed the lower court's refusal to award additional sanctions. The court stated that:
In the circumstances of this case, however, we do not disturb the sanctions fashioned by the court for the bad faith affidavit. Courts have rule-based, as well as inherent, power to hold parties in contempt.....but the decision of whether or not to do so rests in the considerable discretion of the trial court.
Our decision is supported by substantial authority—or rather, the lack thereof—from other jurisdictions. To date, no published opinion shows that a court in Maine or any other state has imposed a contempt finding pursuant to Rule 56(g) for submitting a bad faith affidavit. Further, although M.R. Civ. P. 56(g)—in effect without amendment since 1959—largely duplicates the language of Fed. R. Civ. P. 56(h)5—in effect since 1937—no federal court has ever issued a finding of contempt on this basis.

In Vasquez, the Arizona Supreme Court answered one of two certified questions from the United States Bankruptcy Court. A brief description of the case and the two certified questions are included in the court's oral argument summary which can be viewed HERE. Regarding the question it chose to answer, the court stated:
The first certified question is whether “the recording of an assignment of deed of trust [is] required prior to the filing of a notice of trustee’s sale under A.R.S. § 33-808 when the assignee holds a promissory note payable to bearer.” The answer is no; Arizona law imposes no such requirement.
The court declined to answer the second certified question because it determined that answering the question would not dispose of an issue in the case pending before it. The oral argument, held at the University of Arizona, can be viewed HERE

Florida Supreme Court Rejects Stipulation For Dismissal Of Pino v. Bank of New York

In Pino v. The Bank of New York (SC11-697), a divided Florida Supreme Court denied "the parties’ request to dismiss this proceeding." Justice Pariente, Justice Lewis, Justice Labarga, and Justice Perry concurred in the per curiam opinion. Chief Justice Canady wrote a dissenting opinion that was joined by Justice Quince and Justice Polston. The case came to the Florida Supreme Court after the Fourth District, sitting en banc, certified the following question as one of great public importance:
Pino v. Bank of New York Mellon, 57 So. 3d 950, 951 (Fla. 4th DCA 2011). The Fourth District's opinion was previously discussed HERE. Based upon the Fourth District's certified question, the Florida Supreme Court accepted jurisdiction. Pino v. Bank of New York, 58 So. 3d 261 (Fla. 2011). 

After the supreme court accepted jurisdiction, the parties settled the dispute and filed a stipulation for dismissal in the Florida Supreme Court. The Court declined to accept the stipulation for dismissal and stated:
The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.
Analyzing Florida Rule of Appellate Procedure 9.350, the supreme court stated that the "language of this rule does not impose upon the appellate court a mandatory obligation to dismiss a case following the filing of a notice of dismissal before a decision on the merits has been rendered. Rather, this Court has long recognized its discretion to retain jurisdiction over a matter and proceed with an appeal notwithstanding a litigant’s timely filing of a notice of dismissal pursuant to rule 9.350, especially when the matter involves one of great public importance and is likely to recur."

Based upon that conclusion, the majority held:
Consistent with the rationale undergirding our prior precedent, we conclude that these circumstances fully support this Court’s decision to exercise its discretion to retain jurisdiction over and decide the merits of this important case. To adopt the dissent’s interpretation of rule 9.350(a)—that the act of the parties’ stipulation for dismissal is binding on the Court—would require us to recede from our past decisions recognizing just the opposite. Instead, we adhere to our precedent and, accordingly, exercise our discretion to deny the parties leave to dismiss this review proceeding.
The dissent began: 
Florida Rule of Appellate Procedure 9.350(a) provides that “[w]hen any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.” The rule does not appear to contemplate that such a stipulation for dismissal is subject to disapproval by the Court. The very designation “stipulation for dismissal”—as opposed to “motion for dismissal”—suggests that the act of the parties is dispositive. The committee note to the rule recognizes that dismissal of the case is the clerk’s ministerial duty: “On the filing of a stipulation of dismissal, the clerk of the court will dismiss the case as to the parties signing the stipulation.”.....
Under the Florida Constitution, this Court does not have the power to reach out and grab cases that we deem worthy of our attention. Nor should we exercise the power to grasp a case which has been brought to the Court but which the parties wish to dismiss before it has ever been considered by the Court on the merits. In doing so, we step beyond the proper role of an appellate court to adjudicate those cases that are properly presented to it by a party seeking review.